1. Heard Mr. Samdarsh Nirankari holding the brief of Mr. B.P. Sharma, learned counsel for the petitioner. Also heard Mr. Rajesh Jain, learned counsel, appearing for respondent No.1 and Mr. Ranbir Singh Marhas, learned Additional Advocate General, appearing for the State/respondent No.2.
2. The present petition has been filed by the petitioner with the following prayers:
“It is therefore, prayed that, this Hon’ble Court may kindly be pleased to exercise its inherent jurisdiction under Section 482 of Cr.P.C. and in exercise thereof admit the petition and after hearing the parties in the matter, be pleased to set aside the orders dated 05.10.2016 and 20.01.2016 and in effect discharge the applicant from the charge under section 420 of I.P.C. on such terms as this Hon’ble Court may deem fit in the facts and circumstances of the case.”
3. Brief facts necessary for disposal of this case are that an agreement has been entered into by and between the petitioner and respondent No.1 as the seller & purchaser respectively in respect of former's land bearing Khasra No.151 area 3.97 acre situated at village Kurud at the rate of Rs.70 Lakhs per acre on 19.5.2015. A bare glance of the agreement will reveal that it bears the thumb impression alleged to be of seller and in any case it shows that the seller is an illiterate person and the purchaser who has signed the documents in English is a literate person. Be that as it may, the agreement itself contain a clause that the said land is an agricultural land and it was for the seller to get it diverted at the cost of the purchaser in registration of document i.e. sale deed, was greed to be performed after six months from the date of diversion.
It appears that after such agreement the sale deed could not be executed and the parties are blaming each other as the petitioner has sold the said property to certain other persons parties to the suit which has been filed by the respondent No.1 against the petitioner and other purchasers making the respondent No.2-State of Chhattisgarh as the formal party on or about 18.9.2015 seeking specific performance of contract and cancellation of sale deed executed by the petitioner herein in favour other persons.
4. On 18.9.2015 the civil suit has been filed. However, on 22.9.2015 surprisingly despite filing of an application for withdrawal of civil suit along with court fee and document as the plaintiff was not in a position/unable to pay the court fee of Rs.8 Lakhs, civil suit has not been permitted to be withdrawn and thereafter again application has been filed on 8.10.2015 for withdrawal of civil suit along with court fee and documents, but it appears that civil suit has not been permitted to be withdrawn. The petitioner submits that no averment has been made about fraud and cheating in respect of registration of sale deed by the petitioner in favour of other persons and only it has been said that sale deed dated 4.9.2015 be declared null and void.
5. It is further case of the petitioner that on the basis of statements of witnesses and the complaint, the learned Magistrate vide order dated 20.1.2016 has registered the case under Section 420 IPC against the petitioner after examining the witnesses on 04.11.2015. Thereafter, the petitioner has field criminal revision before the 2nd Additional Sessions Judge, Durg being Criminal Revision No.66/2016, which was dismissed by the 2nd Additional Sessions Judge by the impugned order.
6. Learned counsel for the petitioner submits that registration of criminal case by any agency whosoever i.e. Police or the Court, is a serious thing and when on the face of record no offence is made out, then registration and continuance of criminal proceedings amounts to infringement of fundamental and constitutional rights and the Courts of law always come to the rescue of innocent persons and this is one such case where the petitioner is entitled for quashing of criminal proceedings. In the present case when the petitioner is the victim and has been arrayed as an accused, the same amounts to abuse of process of Court and abuse of process of law. In any view of the matter and taking the entire case of the complainant/respondent No.1 by not executing & registering the sale deed for which an agreement has been entered into, when no step for diversion has been taken or payment of cost etc. as agreed, the same amounts to civil wrong for which the respondent No.1 has already initiated civil proceedings and thereafter lodged criminal proceedings suppressing the fact of filing civil proceedings. In this view of the matter, one and only conclusion which may be drawn is that action of respondent No.1 is abuse of process of Court and abuse of process of law. As such, the petition deserves to be allowed and initiation of criminal proceedings against the petitioner and continuance thereof and also the order dated 05.10.2016 passed by the 2nd Additional Sessions Judge, Durg dismissing the revision after affirmation of the order of registration of criminal case under Section 420 of the IPC dated 20.1.2016 passed by the Judicial Magistrate First Class, Durg in Complaint Case No.534/16 deserve to be set aside/quashed.
7. On the other hand, Mr. Ranbir Singh Marhas, learned Additional Advocate General for respondent No.2/State would submit that on the basis of statements of the witnesses and the perusing the complaint, the learned JMFC, Durg has registered the case under Section 420 of the IPC against the petitioner. He further submits that taking into consideration the material available on record, it cannot be held that no prima-facie case against the petitioner for standing trial is made out. As such, the petition under Section 420 CrPC deserves to be dismissed.
8. I have heard learned counsel for the parties, perused the pleadings and documents appended thereto with utmost circumspection.
9. In the matter of Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others (1998) 5 SCC 749, the Supreme Court has held that the accused can approach the High Court either under Section 482 of the CrPC or under Article 226 of the Constitution of India to have the proceeding quashed against him when the complaint does not make out any case against him.
10. The Supreme Court in the matter of State of Haryana and others v. Bhajan Lal and others 1992 Supp (1) SCC 335 laid down the principles of law relating to the exercise of inherent powers under Article 226 of the Constitution of India to quash the first information report and it has been held that such power can be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. In paragraph 102 of the report, The Supreme Court laid down the broad principles where such power under Article 226 of the Constitution/Section 482 of the CrPC should be exercised, which are as under: -
“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1)Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2)Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4)Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6)Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”
11. The principle of law laid down in Bhajan Lal’s case (supra) has been followed by the Supreme Court in the matters of Google India Private Limited v. Visaka Industries (2020) 4 SCC 162, Ahmad Ali Quraishi and another v. State of Uttar Pradesh and another (2020) 13 SCC 435 and Dr Dhruvaram Murlidhar Sonar v. State of Maharashtra and others (2019) 18 SCC 191. The Supreme Court in Google India Private Limited (supra), explained the scope of dictum of Bhajan Lal’s case (supra) that the power of quashing a criminal proceeding be exercised very sparingly and with circumspection and “that too in the rarest of rare cases” as indicated in paragraph 103 therein of the report.
12. From perusal of the record, it transpires that although the learned Magistrate has found that no offence of forgery has been made out, but relying on the statements of the respondent No.1 and his witnesses, the learned Magistrate has recorded that the petitioner has induced respondent No.1 to pay Rs.1,00,000/- and therefore, offence under Section 420 of the IPC is made out, but appears that there is an error apparent on the face of record and the entire fact even if treated as Gospel truth it cannot be said that the act of the petitioner comes within the purview of fraudulent or dishonest inducement to deliver any property to any person which is sine qua non for the offence of cheating as defined under Section 415 of the IPC. In the present case, none of the ingredients of offence under Section 420 of the IPC exists and thus, an offence under Section 420 of the IPC is not made out.
13. Considering the facts & circumstances of the case and the principle of law laid down by the Supreme Court in Pepsi Food Ltd. (supra) and in Bhajan Lal (supra) and the material available on record, I am of the considered opinion that initiation of criminal proceedings against the petitioner and continuance thereof and also the order dated 05.10.2016 passed by the 2nd Additional Sessions Judge, Durg in Criminal Revision No.66/2016 dismissing the revision after affirming the order of registration of criminal case under Section 420 of the IPC dated 20.01.2016 passed by the Judicial Magistrate First Class, Durg in Complaint Case No.534/16 are hereby set aside. The petitioner is discharged from the charge under Section 420 of the IPC.
14. The petition is allowed to the extent indicated hereinabove.
